Louise Irvine v Dr Anthony Metcalfe & Ors

Liability for a rent repayment order is not confined to the immediate landlord. A person may be liable where they are a landlord of the property and have committed the relevant licensing offence, even though an intermediate company let the property to the occupiers and collected the rent. The relevant twelve-month period must be a period during which the offence was being committed. Time when fewer than five persons occupied the property cannot be included. An appellate tribunal may refuse to reopen permission where any procedural irregularity would not affect the outcome and reopening would not serve the interests of justice.

The appellant, the freeholder of a property occupied as an HMO, appealed against a First-tier Tribunal decision ordering her to repay £45,043.88 to seven occupiers. The property had been let to Uptown Properties UK Ltd, which sub-let it and received rent from the occupiers. The appellant argued that she was neither the relevant landlord nor in control during that period.

She also sought to reopen a refusal of permission concerning the occupancy period used to calculate the order. The central issues were whether the freeholder could be liable despite the intermediate letting and whether periods with fewer than five occupiers could form part of the twelve-month calculation period.

1. The appeal was dismissed. The FTT’s rent repayment order stood.
2. Under Housing Act 2004, s 72(1), managing or being in control of a licensable HMO without a licence is an offence. That offence is within s 40 of the Housing and Planning Act 2016, for which a rent repayment order may be made.
3. The liability identified in Goldsbrough v CA Property Management Limited and Gardner [2019] UKUT 311 (LC) is not limited to the immediate landlord. The statutory requirements are that the person is a landlord of the property and has committed the relevant offence. The appellant’s freehold ownership and retained management responsibilities meant that the intermediate letting to Uptown did not prevent liability. Rakusen v Jepsen [2020] UKUT 298 (LC) had reached the same conclusion.
4. Truman, Hanbury, Buxton & Co Limited v Kerslake [1894] 2 QB 774 did not assist. It concerned the meaning of owner under different legislation and did not decide liability for a rent repayment order.
5. Under s 44(2) of the Housing and Planning Act 2016, the amount must relate to rent paid during a period, not exceeding twelve months, during which the landlord was committing the offence. Where fewer than five tenants occupied the property, no offence was committed and that interval could not be included. The Tribunal nevertheless declined to reopen permission under rule 54 of the Tribunal Procedure (Upper Tribunal) (Lands Chamber) Rules 2010, since reopening was not in the interests of justice.

• First-tier Tribunal (Property Chamber) imposed a rent repayment order of £45,043.88 on the appellant.
• Upper Tribunal (Lands Chamber) dismissed the appeal and left the FTT’s order standing. Permission was not reopened on the occupancy-period ground.